Why So Spurious? 9th Circuit Prevents Replica Batmobile Maker from Infringing use of Batman’s Ride - Fordham Intellectual Property, Media & Entertainment Law Journal
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Why So Spurious? 9th Circuit Prevents Replica Batmobile Maker from Infringing use of Batman’s Ride

Why So Spurious? 9th Circuit Prevents Replica Batmobile Maker from Infringing use of Batman’s Ride

 

Three days before National Batman Day,1 an appeals court exclaimed “Holy copyright law, Batman!”2 as it decided a case involving the Batmobile. The 9th Circuit Court of Appeals affirmed an earlier U.S. District Court for the Central District of California decision that the vehicle (almost as famous as its driver through its depiction in comics, film and television), is an “automotive character”3 entitled to copyright protection as a work of authorship, and affirmed that Defendant-Appellant Mark Towle and his Batmobile Replica business, Garage Gotham, had infringed on DC Comics’ Batman trademarks and their exclusive copyright to produce derivative works of the Caped Crusader’s crime fighting car.4

DC alleged that Towle’s Garage Gotham was engaging in copyright infringement, trademark infringement, and unfair competition5 by producing, advertising (via the domain name Batmobilereplicas.com) and selling replica versions of the Batmobile that were “physically distinct from the Batmobile portrayed in the comics.”6 The Batmobiles that were replicated by Towle previously appeared in the 1966 “Batman” television series starring Adam West as Batman and Burt Ward as Robin,7 and the Michael Keaton-starring 1989 film directed by Tim Burton.8 Towle sold these replicas to car collectors for approximately $90,000 each, and also sold modification kits to others, allowing them to turn their own cars into Batmobile lookalikes through various alterations.

Typically, patent and trademark, not copyright, are of more concern to auto-designers and car enthusiasts.9 While it was undisputed that Towle promoted his business through the use of DC Comics’ trademarks, the copyright issues sparked more of a debate.10 According to Larry Zerner, Towle’s attorney, granting such protection to DC for these features might have a chilling effect on car designers and auto-enthusiasts whose designs were more utilitarian and less artistic.11 Towle’s replicas were from distinctly separate versions of the original, protected Batmobile that appeared in the Batman comics and his defense argued that DC did not own an interest in these sub-licensed productions.12

Both the District and Appeals Courts disagreed and the 9th Circuit determined the Batmobile qualified for protection by meeting a three-part standard of protection for especially distinctive characters, in that it “has distinctive character traits and attributes” that qualified as physical and conceptual qualities, and it can always be recognized as the same character despite varied appearances such that it is sufficiently delineated.13

Using references to characters like James Bond, Godzilla, and “Eleanor,” the car from Gone in 60 Seconds (which in its own case established a test for the distinctive attributes and traits an automotive character would need to be protectable), the court noted that “[t]he Batmobile has varied in appearance over the years, but its name and key characteristics as Batman’s personal crime-fighting vehicle have remained consistent” and that despite the vehicle’s varied depictions in film and television adaptations like the 1966 TV show and the 1989 film (which were themselves the product of licensing and sub-licensing agreements), the car was “sufficiently delineated” by “physical as well as conceptual qualities” such as the car’s consistent “bat-like appearance,” and was distinct in character and attributes by its status as a “crime-fighting car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.”14 Finally, Circuit Judge Sandra Segal Ikuta incorporated the Dark Knight’s own perspective on the role of affording property owners the proper protection in her opinion for the unanimous three-judge panel in order to highlight the importance of the issue, writing that:

 

As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’ Batman: The Penguin Goes Straight, (Greenway Productions television broadcast March 23, 1966).15

 

Thanks to the 9th Circuit Court of Appeals, the keys to the Batmobile have been handed back to their rightful owner.

 

Image: Batmobile” by chorwedel is licensed under CC BY-NC-ND 2.0


  1. Official Press Release, DC Entertainment Announces That On September 26: “Batman Day” Returns, DC Comics (June 16, 2015), http://www.dccomics.com/blog/2015/06/16/batman-day [http://perma.cc/SD6Z-B8GB].

  2. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *1 (9th Cir. Sept. 23, 2015).

  3. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *12 (9th Cir. Sept. 23, 2015).

  4. $90,000 Batmobile Replicas Infringe DC Comics’ Copyright, Appeals Court Rules, 27 Westlaw Journal Entertainment Industry 4 (2015).

  5. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *3 (9th Cir. Sept. 23, 2015).

  6. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *2 (9th Cir. Sept. 23, 2015).

  7. Batman, IMDB, http://www.imdb.com/title/tt0059968/?ref_=nm_flmg_act_141 [http://perma.cc/MBC4-JRV9] (last visited Oct. 23, 2015).

  8. Batman, IMDB, http://www.imdb.com/title/tt0096895/?ref_=nv_sr_3 [http://perma.cc/X2N6-HRY8].

  9. David Conwill, Does the Batmobile Copyright Prevent You from Making a Replica?, Yahoo Autos (Oct. 7, 2015), https://www.yahoo.com/autos/does-the-batmobile-copyright-prevent-you-from-132443231.html [https://perma.cc/3WFV-FQAS].

  10. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *11 (9th Cir. Sept. 23, 2015).

  11. Sudhin Thanawala, USNews (Sept. 23, 2015, 4:24 PM), http://www.usnews.com/news/entertainment/articles/2015/09/23/court-finds-batmobile-is-entitled-to-copyright-protection [http://perma.cc/6WFH-DCJN].

  12. $90,000 Batmobile Replicas Infringe DC Comics’ Copyright, Appeals Court Rules, 27 Westlaw Journal Entertainment Industry 4 (2015).

  13. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *5 (9th Cir. Sept. 23, 2015).

  14. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *7 (9th Cir. Sept. 23, 2015).

  15. DC Comics v. Towle, No. 13-55484, 2015 WL 5569084, at *12 (9th Cir. Sept. 23, 2015).

Vincent Barbuto

Vincent Barbuto is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.